Citation Nr: 0633360
Decision Date: 10/27/06 Archive Date: 11/14/06
DOCKET NO. 05-05 277 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Cleveland,
Ohio
THE ISSUES
1. Entitlement to service connection for sciatica of the
right leg.
2. Entitlement to service connection for gastroesophageal
reflux disease.
ATTORNEY FOR THE BOARD
Patricia A. Talpins, Associate Counsel
INTRODUCTION
This matter comes before the Board of Veterans' Appeals (BVA
or Board) on appeal from a July 2004 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Muskogee, Oklahoma in which the RO denied the benefits sought
on appeal. The appellant, who had active service from July
1998 to July 2004, appealed that decision to the BVA.
Thereafter, the RO referred the case to the Board for
appellate review.
For procedural purposes, the Board observes that the
appellant originally filed her claim with the RO in Muskogee,
Oklahoma and that the Muskogee RO issued the rating decision
on appeal. See May 2004 application for compensation; July
2004 rating decision. According to a note in the claims
file, the appellant subsequently moved to Ohio and her claims
file was transferred to the RO in Cleveland, Ohio. See
February 2005 statement in support of claim; February 2005
notice of permanent transfer. The Cleveland RO certified the
appellant's appeal to the Board of Veterans' Appeals. See
April 2006 letter.
The appellant requested a Travel Board hearing before a
member of the Board in this case; however, she failed to
appear for such a hearing scheduled on April 19, 2006. See
February 2005 VA Form 9; April 2006 letter regarding
scheduled hearing.
In the appellant's February 2005 substantive appeal, she
indicated that her right leg sciatica is a result of having
pulled the muscles in her lower back while working on the
flight line in service. It is unclear if the appellant is
claiming service connection for a low back disorder. This
matter is referred to the RO for appropriate clarification
and other indicated action.
The issue of entitlement to service connection for sciatica
of the right leg will be addressed in the REMAND portion of
the decision below. The RO will notify the appellant if
further action is required on her part.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the appellant's claim of entitlement to
service connection for gastroesophageal reflux disease has
been obtained.
2. The appellant was diagnosed as having gastroesophageal
reflux disease in service; however, the medical evidence of
record does not indicate that she currently has such a
diagnosis.
CONCLUSION OF LAW
Gastroesophageal reflux disease was not incurred in or
aggravated by service.
38 U.S.C.A. §§ 1101, 1110, 5103, 5103A, 5107 (West 2002 &
Supp. 2005);
38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.306 (2006).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
A. The Veterans Claims Assistance Act
With respect to the appellant's claim of entitlement to
service connection for gastroesophageal reflux disease
(hereinafter referred to as "GERD"), VA has met all
statutory and regulatory notice and duty to assist
provisions. See 38 U.S.C.A.
§§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 &
Supp. 2005); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326
(2006).
Prior to the adjudication of the appellant's claim, a
predischarge duty to assist letter signed and dated by the
appellant in May 2004 fully satisfied the duty to notify
provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1);
Quartuccio v. Principi, 16 Vet. App. 183 (2002). The
appellant was aware that it was ultimately her responsibility
to give VA any evidence pertaining to her claim. The May
2004 letter informed the appellant that additional
information or evidence was needed to support her service
connection claim; and asked the appellant to send the
information to VA. Pelegrini v. Principi, 18 Vet. App. 112
(2004)(Pelegrini II).
The appellant's service medical records have been obtained,
to the extent possible. 38 U.S.C.A. § 5103A; 38 C.F.R.
§ 3.159. There is no indication in the record that any
additional evidence, relevant to the issue decided herein, is
available and not part of the claims file. The appellant was
also afforded a predischarge VA medical examination in June
2004 in conjunction with her service connection claim.
Since the Board has concluded that the preponderance of the
evidence is against the appellant's claim of entitlement to
service connection for GERD, any questions as to the
appropriate disability rating or effective date to be
assigned are rendered moot, and no further notice is needed.
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).
B. Service connection for gastroesophageal reflux disease
In this case, the appellant reports having GERD since
approximately 2002; and indicates that this diagnosis results
in decalcification of her teeth, difficulty swallowing
liquids, being unable to eat as much as she should and
feeling hungry all of the time. See June 2004 examination
report, p. 1. She contends that she developed GERD as a
result of being assigned a stressful work schedule after the
terrorist attacks of September 11, 2001, in that she worked
12 hours on duty and 12 hours off during that period of time.
See February 2005 VA Form 9. While viewing the evidence in
the light most favorable to the appellant in this case, the
Board finds that the preponderance of the evidence is against
the appellant's claim. As such, the appeal must be denied.
Applicable law provides that service connection will be
granted if it is shown that a veteran has a disability
resulting from an injury or disease contracted in the line of
duty or for aggravation of a preexisting injury or disease.
38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303,
3.304 (2005). In addition, service connection may be granted
for any disease diagnosed after discharge, when all of the
evidence, including that pertinent to service, establishes
that a disease was incurred in service. 38 C.F.R. § 3.303(d).
Generally, to prove service connection, the record must
contain: (1) medical evidence of a current disability, (2)
medical evidence, or in certain circumstances, lay testimony,
of an in-service incurrence or aggravation of an injury or
disease and (3) medical evidence of a nexus between the
current disability and the in-service disease or injury. Pond
v. West, 12 Vet. App. 341 (1999); Caluza v. Brown, 7 Vet.
App. 498 (1995).
When all the evidence is assembled, the VA is responsible for
determining whether the evidence supports the claim or is in
relative equipoise, with the appellant prevailing in either
event; or whether a preponderance of the evidence is against
a claim, in which case, the claim is denied. Gilbert v.
Derwinski, 1 Vet. App. 49 (1990). The Board is responsible
for assessing the credibility and weight to be given to the
evidence. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993).
Such assessments extend to medical evidence. See Guerrieri v.
Brown, 4 Vet. App. 467, 470-71 (1993) (the probative value of
medical evidence is based on the physician's knowledge and
skill in analyzing the data, and the medical conclusion
reached; as is true of any evidence, the credibility and
weight to be attached to medical opinions are within the
province of the Board).
In regards to the first element necessary for a grant of
service connection in this case (medical evidence of a
current disability), the medical evidence of record indicates
that the appellant does not have a current diagnosis of GERD.
While the appellant's service medical records reveal that she
experienced GERD symptoms in the past for which she took
medication (See June 2003 service dental records; service
medical records dated in September 2003 and November 2003),
the June 2004 VA examiner did not find that the appellant
presently has GERD. In making this determination, the
examiner performed a physical examination of the appellant
and ordered diagnostic tests that included chest x-rays and
an upper GI. See June 2004 examination report, p. 3.
Notably, these diagnostic tests were normal. Id. Based upon
this information, the examiner reported that he found no
pathology upon which to make a diagnosis of GERD. Id., p. 4.
He specifically did not opine that the appellant has a
present diagnosis of GERD.
The United States Court of Appeals for Veterans Claims (the
"Court") has held that there can be no valid claim without
proof of a present disability. Brammer v. Derwinski, 3 Vet.
App. 223 (1992); Rabideau v. Derwinski, 2 Vet. App. 141
(1992). The existence of a current disability is the
cornerstone of a claim for VA disability benefits. See
Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997). As
discussed above, the appellant was not diagnosed with GERD
during her June 2004 predischarge examination. In addition,
the appellant's claims file does not contain any post-service
private or VA medical records indicating that the appellant
has been treated for GERD symptomatology or been diagnosed
with GERD since her separation from service in July 2004.
Thus, there is no medical evidence upon which the Board can
find that the appellant has a current medical disability
(GERD) for which service connection can be granted. In the
absence of competent medical evidence showing such a
disability, there is no basis for the granting of service
connection under any theory.
Therefore, for the reasons discussed above, the Board finds
that the preponderance of the evidence is against the
appellant's claim of entitlement to service connection for
GERD. In reaching this decision, the Board has considered
the doctrine of reasonable doubt. However, as a
preponderance of the evidence is against the appellant's
claim, the doctrine is not applicable. See Gilbert v.
Derwinski, 1 Vet. App. at 55.
ORDER
Service connection for gastroesophageal reflux disease is
denied.
REMAND
A preliminary review of the record with respect to the issue
of entitlement to service connection for sciatica of the
right leg discloses a need for further development prior to
final appellate review.
In this regard, the Board observes that the appellant's
service medical records reveal complaints of upper back and
neck pain as a result of lifting a toolbox in March 1999. See
March 1999 service medical records. The appellant was
diagnosed with a muscle strain at that time; and was
instructed on how to perform stretching exercises. Id. It
appears that the appellant was then seen in November 2003 for
a preventative health assessment, at which time she reported
that she had a pinched nerve in her leg that sometimes made
her leg go numb. November 2003 service medical records. The
medical records noted that the appellant had never been
diagnosed with a leg disorder. Id. She did not receive
treatment for her leg at that time. Id.
In late November 2003, the appellant was seen for bilateral
numbness of the legs. Id. She reported that she had
experienced lower back pain radiating to the legs on-and-off
for approximately three years. Id. She also indicated that
her symptoms were worse with stress; that the pain she
experienced was centered at her hips and radiated to her
legs; and that sitting appeared to make her symptoms worse.
Id. Following a physical examination that was found to be
normal, the appellant was diagnosed with radiculopathy and
joint pain. Id. A follow-up medical visit performed the next
month indicated that the appellant continued to experience
intermittent gluteal pain that radiated down to her lower leg
and occurred a few times a month. The appellant reported,
however, that her pain had not reoccurred since she began an
exercise routine. December 2003 service medical records. A
physical examination of the appellant at that time was yet
again normal; as were x-rays of her lumbar spine. Id. She
was diagnosed with sciatica and prescribed the medication
Vioxx. Id. Thereafter, the appellant was seen in April 2004
and May 2004 for lower back pain that radiated to her legs.
See service medical records dated in April 2004 and May 2004.
Her physical examinations continued to be normal; and an MRI
performed in April 2004 was also normal. Id. During her May
2004 medical visit, the appellant reported that she had been
seeing a chiropractor, and that her back pain had improved.
See May 2004 service medical records; May 2004 report of
medical assessment.
The Board observes that the chiropractic records referenced
in the appellant's May 2004 service medical records are not
part of the claims file. As these medical records may
contain both relevant and pertinent evidence in regards to
the appellant's claim, the Board finds that the claim should
be remanded in order for the RO to associate those records
with the claims file.
Therefore, in order to give the appellant every consideration
with respect to the present appeal, it is the Board's opinion
that further development of the case is necessary. As such,
the case is being returned to the RO via the Appeals
Management Center in Washington, D.C., and the VA will notify
the appellant if further action on her part is required.
Accordingly, the case is REMANDED for the following action:
1. The appellant should be requested to
furnish the complete names and addresses of
any medical providers that have treated her
in connection with either numbness or pain
of the right leg associated with sciatica or
some other right leg disorder, including the
name of the chiropractor referenced in the
appellant's May 2004 service medical
records. The appellant should be asked to
provide specific authorizations for the
release of medical records from the above-
referenced list. After obtaining the
necessary authorizations, the RO should
associate those records with the claims
file. The appellant should also be
informed, in the alternative, that she may
obtain these records herself and submit them
to the RO.
2. After obtaining and reviewing the above
requested medical records, the RO should
undertake any other indicated action to
include VA examination, if in order.
When the development requested has been completed, the case
should again be reviewed by the RO on the basis of all
evidence of record. If the benefit sought is not granted,
the appellant should be furnished a Supplemental Statement
of the Case and be afforded a reasonable opportunity to
respond before the record is returned to the Board for
further review.
The purpose of this REMAND is to obtain additional
development, and the Board does not intimate any opinion as
to the merits of the case, either favorable or unfavorable,
at this time. The appellant is free to submit any
additional evidence and/or argument she desires to have
considered in connection with her current appeal.
Kutscherousky v. West, 12 Vet. App. 369 (1999). No action
is required of the appellant unless she is notified.
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate
action must be handled in an expeditious manner. See 38
U.S.C.A. §§ 5109B, 7112 (West Supp. 2005).
______________________________________________
S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs